THE TEMPLE BAR

• Decision Date: 29 June 1942
• Docket Number: No. 2426.,2426.
• Citation: 45 F. Supp. 608
• Parties: THE TEMPLE BAR. Petition of TEMPLE S. S. CO. Ltd.
• Court: U.S. District Court — District of Maryland

45 F. Supp. 608

THE TEMPLE BAR.

Petition of TEMPLE S. S. CO. Ltd.

No. 2426.

District Court, D. Maryland.

June 29, 1942.

COPYRIGHT MATERIAL OMITTED

Ritchie, Janney, Ober & Williams, of Baltimore, Md., and Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Robert W. Williams, of Baltimore, Md., L. de Grove Potter and Eugene F. Gilligan, both of New York City, and Southgate L. Morrison, of Baltimore, Md., of counsel), for petitioner Temple S. S. Co., Ltd.

Lord & Whip, of Baltimore, Md., and Bigham, Englar, Jones & Houston, of New York City (T. Catesby Jones and James Ryan, both of New York City, and George W. P. Whip, of Baltimore, Md., of counsel), for claimant Continental Ins. Co.

COLEMAN, District Judge.

This is a proceeding for exemption from liability combined with a proceeding for limitation of liability, brought pursuant to the provisions of 46 U.S.C.A. §§ 183-188, by the Temple Steamship Company, Ltd., a British company, owner of the British steamship Temple Bar. The owner was originally sued in this Court by the Continental Insurance Company, the insurer of a cargo of approximately 7,000 tons of scrap iron shipped by Japanese charterers on this vessel which was lost when the vessel stranded on the coast of the State of Washington on April 8, 1939. The insurance company paid the Japanese owners of the cargo for its loss prior to the outbreak of the War, took an assignment of such owners' rights against the vessel, and has filed its claim for $157,990. By injunction of this Court, issued on July 18, 1940, further proceedings in this original suit were stayed pending a determination of the issue in the present and later proceeding, which involves the determination of two questions: First, whether the insurance company, the sole claimant in the limitation proceedings, has any valid claim against the owner of the vessel; and second, if it has, whether the owner is entitled to limit its liability to the value of its interest in the vessel and her pending freight. Obviously, if the first question be answered in the negative, there is no need for consideration of the second question.

The Temple Bar was a steel screw steamship of 4,291 gross, and 2,570 net, tons register, 390 feet in length, 52 feet beam, 27.2 feet moulded depth, and was built in 1928. For her ill-fated voyage she loaded her cargo at Jacksonville and Fort Everglades, Florida, leaving the latter port on March 14, 1939, whence she proceeded to Jamaica for coal, thence through the Panama Canal and was on her way up the Pacific Coast to Comax, British Columbia, for further coaling when the stranding occurred in the early morning of April 8th. At 8:20 p.m. on April 6th, she was in a position about nine miles off Cape Blanco on a course N 46° W. Her course was then changed to N 26° W, and again shortly afterwards to N 27° W. She proceeded until 8:00 a.m. on April 7th on the latter course when it was changed to N 23° W, and at noon of the same day was again changed to N 19° W. This latter course was maintained until the Temple Bar stranded at 3:30 a.m. on April 8th on Quillahute Needles Rock, south of James Island light and near the mouth of the Quillahute River, Washington, and north of Destruction Island light. The place of stranding was to the east and south of the calculated position of the master of the Temple Bar. The N 19° W course had been set at noon on April 7th to pass Destruction Island light on the starboard beam, at a distance of 18½ miles and to pass Yumatilla light vessel on the starboard beam at a distance of three miles. The Temple Bar's master and second officer testified that they had expected to sight Destruction Island light at 2:30 a.m. on April 8th, but that a misty rain came on and they passed Destruction Island light without seeing it. The second officer was on watch with the helmsman and bow lookout at the time of stranding. The weather was unfit for stellar observations on the evening of April 7th and the only log saved from the vessel, at least the only one that has been placed in evidence and said to be available, namely, her scrap-log, shows that the weather was overcast at 11:00 p.m. on that evening, with a light following (southerly) wind. The master left the bridge at 11:30 p.m. on that evening to go to bed, giving instructions in his night orderbook "to check position when possible" and that he should be called when the vessel was abreast of Destruction Island light. At 2:00 a.m. the second officer awakened the master because concerned over not having picked up this light, but the master expressed no alarm, believing that the vessel had not run far enough to do so, and accordingly the vessel was held upon her same course until she stranded as already explained, and sank within a few minutes, her officers and crew escaping in the life boats. Salvage of the vessel was impossible, and she was sold, less certain equipment that was removed, for less than $2,000 where she lay.

The charter party is dated February 16th, 1939, and provides for the carriage of one entire cargo for a single shipper. It was not executed in London by the British Company, the owner of the vessel, but in New York City by the Freighting Corporation of America, as brokers for the owner. Therefore, on the authority of the distinction between personal and nonpersonal contracts as defined in Earle & Stoddart v. Ellerman's Wilson Line, 287 U.S. 420, 421, 53 S.Ct. 200, 77 L.Ed. 403, this charter party is not to be treated as a personal contract, and so the owner is not denied the right to invoke the limitation of liability statute. See, also, Hockley v. Eastern Transportation Co., D.C., 10 F. Supp. 908.

The Harter Act, 46 U.S.C.A. §§ 190-195, is incorporated by express reference in the bills of lading for so much of the cargo as was taken on at Jacksonville, and both this Act and the Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315, are expressly incorporated in the bills of lading issued for the rest of the cargo taken on at Fort Everglades. But we need not dwell upon any of these documents since it is well settled that as between the provisions of a charter party and of a bill of lading, the former control. The G. R. Crowe, 2 Cir., 294 F. 506, certiorari denied 264 U.S. 586, 44 S.Ct. 335, 68 L.Ed. 862; The Nordhvalen, D.C., 6 F.2d 883. We, therefore, turn to a consideration of the provisions in the charter party which purport to define the liability of the vessel and its owner. These are to be found in paragraphs 2 and 30 of the charter party. The first section of paragraph 2 reads as follows: "It is also mutually agreed that the Carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the seas or other waters, by fire from any cause or wheresoever occurring, by barratry of the Master or crew, by enemies, pirates or robbers, by arrest and restraint of Princes, Rulers or People, by explosion, bursting of boilers, breakage of shafts or any latent defect in hull, machinery or appurtenances, by collisions, stranding or other accidents or navigation of whatsoever kind (even when occasioned by negligence, default or error in judgment of the pilot, Master, mariners or other servants of the Ship Owner, not resulting however, in any case from want of due diligence by the Owners of the Ship or any of them or by the Ship's Husband or Manager). Charterers also not to be responsible for restraint of Princes, Rulers or People." After providing for General Average, paragraph 2 concludes by incorporating into the charter party the Harter Act, 46 U.S. C.A. §§ 190-195, by providing that "It is also mutually agreed that this Contract is subject to all the terms and provisions of, and all the exemptions from liability contained in, the Act of Congress of the United States, approved on the 13th day of February, 1893, and entitled `An act relating to navigation of vessels,' etc."

Paragraph 30 of the charter party, in addition to providing for the incorporation of statutory or other provisions with which we are not concerned in the present suit, provides that the "Paramount" clause is "to be incorporated in this charter party." By the weight of the credible evidence introduced in the present case, this reference to the "Paramount" clause is to be taken in the sense in which that phrase is generally understood in the shipping trade, namely, that it has reference to the following clause: "This charter shall have the effect subject to the provisions of The Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. If any term of this charter be repugnant to said Act to any extent, such term shall be void to that extent but no further." See The Steel Inventor, D.C., 35 F.Supp. 986.

Thus, the Carriage of Goods by Sea Act which became effective July 15th, 1936, 46 U.S.C.A. §§ 1301-1315, is expressly incorporated in the charter party, and by its very terms, § 12, 46 U.S.C.A. § 1311, supersedes the earlier, Harter Act when, as here, we are concerned not with rights and liabilities in relation to a cargo before its loading or after its discharge from the vessel, but during the voyage. The Carriage of Goods by Sea Act contains the following provisions, § 4 (1, 2), 46 U.S.C.A. § 1304 (1) and (2), which are very similar to Paragraph 2 of the charter party already quoted: "(1) Unseaworthiness. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied, * * *. Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise...